In Keller Foundations, Inc. v. Wausau Underwriters Ins. Co., No. 08-50253, defendant's appeal from the district court's judgment holding that plaintiffs were entitled to defense and indemnity under a commercial general liability policy defendant issued to a third party, from whom plaintiffs acquired certain assets, the court reversed where plaintiffs agreed to assume liability for the particular losses in question and explicitly excluded the policy from the asset transfer.

As the court wrote: "Wausau Underwriters Insurance Co. (Wausau) appeals the district court's judgment holding Keller Foundations, Inc. and Suncoast Post-Tension, L.P. (collectively, Keller Companies) are entitled to defense and indemnity under a commercial general liability policy Wausau issued to Travis International, Inc., from whom the Keller Companies acquired certain assets. Because the Keller Companies agreed to assume liability for the particular losses in question and explicitly excluded the Wausau policy from the asset transfer, we reverse."

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